Commons Bill [HL]

My Lords, perhaps I can consider myself fortunate that coming from Scotland, as the Minister pointed out, I do not have any direct interest to declare in the immediate subject of the Bill. That is particularly so when I saw how my life or tried to find out how my life would be shaped in a rather opaque way by clauses such as Clause 28(6), which goes on about regulations being amended by regulations in terms amended in relation to the terms as first prescribed. However, I declare an interest as a landowner and a hill farmer. We have heard today from a wide perspective, in the true traditions of the House, including owners of commons; those who have lived in a dominant tenement; those who, I take it, own a servient tenement; those who have enjoyed access, such as the noble Lords, Lord Clark and Lord Haworth; and those who have enjoyed the history, such as the noble Lord, Lord Greaves, and others. Their contributions, founded on experience of the common land system, bring a wealth of knowledge and understanding to our debate. The Minister kindly offered us briefings on the way in which he and his department were approaching the Bill. On occasion, I have wondered whether we spoke the same language, especially regarding sustainable agriculture. Many noble Lords, including the noble Lord, Lord   Chorley, and my noble friend Lord Rotherwick have mentioned that difficulty. In fact, we have seen the term used in a different sense by various noble Lords. Sure enough, the phrase ““sustainable agriculture”” occurs in Clause 30(2), but when I go further into the   clause and its stipulations on the functions of commons associations, what do I find? There are sections on the removal of livestock; on having regard to guidance given by the appropriate national authority; on nature conservation and conservation of landscape; and on the protection of public rights of access. They are not directly related to sustaining agriculture. There is no sense that an important yardstick might be seen in agricultural production or in the viability of farming units. I understand rather better the instructions given to the 2002 stakeholder working group, which was told to seek a consensus on proposals for,"““agricultural use and management of commons””," with no mention of sustainability. I almost feel that I should ask whether it is the purpose in Defra to fix the   meaning of the trendy new term ““sustainable agriculture””, which is supposed to encompass all the criteria in the Bill and few of those to which the men who have been trying to make a living from the land have been accustomed. That approach seems to me, as it did to my noble friend Lord Ullswater, to have more to do with a sustainable, ecological prescription than it has to do with agriculture. Perhaps the Minister will tell us whether he feels ““sustainable agriculture””, the latest technical term for use in industry, is on a par with ““modulation”” and ““degressivity””. As my noble friend Lady Byford has said, there are many aspects of the Bill that we will have to consider carefully. A worry arises in Clause 14 about the criteria for the registration of greens. The noble Lord, Lord   Clark, mentioned the urban commons in Cumbria, but it seems to me that there is no need for a town or village green to be adjacent to housing or in a built-up area. That may be as it should be, because perhaps the local cricket pitch is on land that has been lent to the club at some distance from the village and everyone thinks that it should be managed as a village green. My noble friend Lady Byford drew the attention of the House to the fact that the right to apply for registration of a green depends on grounds of indulging,"““as of right in lawful sports and pastimes””," for 20 years, when it can be a question only of walking the dog. My concern is that that is a recipe for ensuring that landowners will consider barricading everything that is not currently open to access and will try never to let anyone go on it without permission again. Even the Royal Institute of Chartered Surveyors in its brief seems to suggest that that would have to be overcome, perhaps by incorporating some definition. In Committee, I would like to ask the Government whether they would consider, particularly, an exception for a form of legal access agreement where the owner does not want a permanent right to be established immediately. That would give a chance for review. That would probably ensure that there would be less resistance to a fully comprehensive network of footpaths being created in the first instance. My noble friend Lady Byford also mentioned the worry about spurious claims for village greens purely as a gambit to prevent development. In common with my noble friend Lord Inglewood, I find another knotty problem in Clause 9, entitled, ““Severance””. I have no doubt that some commons have experienced problems with absentee holders of rights who remain unconnected with the policies and wishes of those who are actively involved. My hope would be that, with our efforts to set up commons associations and the conditions that we attach, it would go a long way towards ensuring that everyone who has rights will have to be connected. If they are not, they will be unable to influence what is going on. The noble Lord, Lord Greaves, mentioned an issue about which noble Lords must be aware. On 6 July, the   National Trust produced a worrying study of 60   tenanted farms on their properties which showed that, under the single farm payment system, all those in the hill and upland areas would become economically unviable, let alone unsustainable. The question that that raises in my mind—it was touched on by my noble kinsman Lord Cameron—is ““What happens to grazing rights when the dominant tenement is a farm that has   been abandoned?””. If agricultural sustainability is incorporated in the aim, surely severance should be retained, designed and directed towards those who are recognised as potentially active users of the right. Even more worrying is the factor mentioned by my noble friend Lord Patten. If, at the end of our debate, we are left with purely Clause 9(3)—where the right of severance may be transferred only to Natural England or the Countryside Council for Wales—can the Minister explain whether that implies that within the Government’s intentions is the possibility that in a process of attrition, more and more of those areas will become a fiefdom of Natural England and we will see a form of common land nationalisation? My last words are on the commons associations themselves. The Bill fails to go into any detail on their constitution or their basic administration and working. That creates a wealth of questions. For example, will there have to be a minimum number of people involved in order to form an association, or technically could one person alone constitute the body? How will decisions be made? The Minister said in his opening speech that decisions should be made by a majority vote. If so, how will that majority be defined? Who will chair the meetings, and will the post be one that rotates among the members? How will the process of setting up an association be triggered? Does the Bill allow Her Majesty’s Government to set up an association without receiving an approach by commoners or owners themselves? I could go on, but in the spirit of a Second Reading debate, I believe that I have asked too many questions already. However, your Lordships will have a feel for the amount of the unknown in the Bill. It is one more example of where the devil is in the detail, and I feel that the argument for flexibility does not justify leaving so much to regulation. Let us hope that many answers will be set out in the model agreement mentioned by the Minister. In particular, let us hope that we have sight of it before we reach any further stages.